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2000 DIGILAW 1275 (MAD)

New India Assurance Co. Ltd. v. Mani

2000-12-12

K.P.SIVASUBRAMANIAM

body2000
Judgment :- SIVASUBRAMANIAM. J. ( 1 ) THIS appeal is directed against the award of the Motor accidents Claims Tribunal. Madras, in m. C. O. P. No. 950 of 1991. The insurance company is the appellant in the above appeal. ( 2 ) CONSIDERING the scope of the appeal filed by the insurance company alone, it is not necessary to deal with the facts relating to the accident and the negligence. The grievance of the insurance company is that the driver in question, did not possess a proper licence to drive the autorickshaw and, therefore, the Tribunal was in error in fixing the liability on the insurance company. ( 3 ) THE facts which are sufficient to dispose of this appeal are that the insurance company contended that the driver did not have a valid licence. The insurance company relies on Exhs. R-2 and R-3 being the proceedings before the criminal court where the driver was prosecuted and he was convicted under section 338, Indian penal Code read with sections 184, 179, 134, Indian Penal Code and sections 8 (2)and 3 of the Motor Vehicles Act, for driving the vehicle without any valid licence. The driver appears to have pleaded guilty and he was convicted for not possessing driving licence. ( 4 ) IN the said background, the learned counsel for insurance company contends that the owner of the vehicle also remained ex parte and, therefore, applying the judgment of the Apex Court in United India insurance Co. Ltd. v. Gian Chand, 1997 ACJ 1065 (SC), an adverse inference should be drawn as against the owner that he had entrusted the motor vehicle to an unlicensed driver. ( 5 ) IN this context, learned counsel for the respondent relies on the judgment of a division Bench of this court in National insurance Co. Ltd. v. A. Babu, 1990 ACJ 1003 (Madras ). Reliance is placed on the observation of the Division Bench which is as follows:"in view of the ratio laid down in the above decisions, the admission of the respondent No. 1 and the conviction awarded to the respondent No. 1 are not sufficient to absolve the insurance company as the insurance company has not discharged the onus by taking steps to summon the very licence either from pw 1 or from the Transport Authority who issued the licence. " ( 6 ) IN reply, the learned counsel for the insurance company refers to the judgment of another Division Bench of this court in national Insurance Co. Ltd. v. Thulasi, 1994-1-LW 567 and contends that the said judgment has been distinguished and in view of the admission by the driver himself before the criminal court, there is no question of any burden of proof on the insurance company. ( 7 ) I am unable to accept the contentions of the learned counsel for the insurance company. It is true that in United India insurance Co. Ltd. v. Gian Chnd, 1997 acj 1065 (SC), the Supreme Court has held that inference could be drawn against the owner if he remains ex parte. This is however, subject to the insurance company discharging its initial burden and the division Bench in National Insurance Co. Ltd. v. A. Babu, 1990 ACJ 1003 (Madras), has specifically pointed out that mere admission of the driver before the criminal court cannot be conclusive and that the insurance company should have discharged its initial onus by taking steps to summon a competent witness from the office of the Regional transport Authority. In the present case, admittedly, no such steps were taken. Only an Investigator belonging to the insurance company alone was examined. That in my opinion is not sufficient since the investigator happens to be a staff of the insurance company. The minimum requirement is to file either a report from the office of the regional Transport Authority having jurisdiction over the local area or to examine any staff from the said office to substantiate that the driver had no valid licence. It is only thereafter, the burden would shift either on the owner or the driver of the vehicle. ( 8 ) INASMUCH as the initial burden of proof has not been discharged by the insurance company, mere reliance on the admission before the criminal court cannot be accepted. ( 9 ) IN the result, the appeal is dismissed. No costs. Consequently, the connected c. M. Ps. are also dismissed as unnecessary. Appeal dismissed.